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Thursday, August 30, 2018

Epstein: 'We live in a country where the judiciary is under attack'

Jules Epstein a professor of Law and Director of Advocacy Programs at Temple Beasley School of Law wrote the following piece on judicial independence for the Philadelphia Inquirer:Last week, Gov.
Wolf asked Pa.'s Judicial Conduct Board to review decisions by the
Bucks County judge who let the father of Kayden Mancuso have unsupervised
visits with the 7-year-old girl in the weeks before he fatally beat her and
killed himself. Additionally, Mancuso's relative is calling for the judge's
removal, an outcry supported by 37,000 petition signers.

Two words shout out against such responses: judicial
independence.

We live in a country where the judiciary is under
attack, with cries from the President that "our legal system is
broken" and judicial decisions put our country "in peril."
But Americans want and need judges to make tough decisions without looking over
their shoulders. And we want lawyers to be able to go into court on new
cases without fearing that the judge will make a harsh decision to look tough
and appease critics.

Judicial misconduct warrants
sanctions. That includes lying, stealing, doing favors; not showing up
for work; or being racist, sexist or otherwise hostile to discrete
populations. Such actions warrant punishment and some may require
removal. But an unwise decision – if this indeed was one – is not misconduct.

Can we know that the judge's decision was wrong,
except using hindsight?

In the case of Kayden Mancuso's tragic death,
evidence was offered that her father had committed abusive acts
toward adults in his past, and suffered from depression. Data do
support the assertion that these behaviors indicate that children in
the home may be at risk, but that is just one of 16 factors the
law requires a judge to weigh. Is a judge wrong if the risk is 1 percent
versus 15 percent, or if the father has been with this child without violence,
or if the spousal abuse occurred years earlier? Unless the science is
clear, the numbers are compelling, and the law makes this the main factor, the judge's
decision is not misconduct.

What is needed here? From the worlds of
airplane accidents and medical errors, the judiciary needs what are termed
"just culture" reviews and "root-cause analysis." In
plain English, that means studying whether and why the judge's decision was
clearly wrong and unjustified, all without punishment; assessing what
information should have been considered and how it should have been weighed;
and learning how to ensure that the risk of such harm is reduced if not
eliminated in future cases.

That may mean more judicial education, both
generally and using cases like this as studies; more resources to educate and
periodically update judges on reliable social science; and/or a recalibration
of the law that weighs more heavily the history of intimate partner violence
when determining custody and visitation.

We must protect our children, but not in a way that
fails to protect the institution of an independent judiciary.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.